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In re Grand Jury

filed: June 9, 1987.

IN RE GRAND JURY; IN THE MATTER OF GRANITE PURCHASES FOR STATE CAPITAL - GRAND JURY SUBPOENA NUMBER 86-1. UNITED STATES OF AMERICA, APPELLANT


On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Misc. No. 86-027).

Before: Becker and Mansmann, Circuit Judges and Teitelbaum, District Judge*fn*

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

The Chairman of an investigative committee of the Pennsylvania House of Representatives and other leaders of the House ("the Legislators") have refused to comply with a federal grand jury subpoena seeking certain records of the committee's investigation into alleged contractual fraud. n.1 [Footnote Omitted] They assert a common law speech or debate privilege for state legislators cognizable in federal courts under Federal Rule of Evidence 501. On the basis of this asserted privilege, they petitioned the district court to quash the subpoena. Applying a balancing test to the competing interests, the district court granted much of the requested relief. The United States, acting for the grand jury, now appeals.

In United States v. Gillock, 445 U.S. 360, 63 L. Ed. 2d 454, 100 S. Ct. 1185 (1980), the Supreme Court rejected a claim that a speech or debate privilege prevents a prosecutor from using evidence of a state legislator's legislative acts in a prosecution against him. The Legislators and the district court believe that Gillock is distinguishable because it involved a more compelling federal interest than that at stake in this case; essentially they claim that Gillock rejected only an absolute privilege and does not preclude a qualified speech or debate privilege that protects the documents requested here.

Gillock, however, was not based on a general balancing of competing interests that may differ from case to case. Instead, the Supreme Court engaged in a particularized analysis of whether the interests protected by the Constitutions; Speech or Debate Clause justify extension of that protection to state legislators. An analysis along the lines suggested by Gillock leads also to rejection of a qualified privilege. Neither the threat of harassment by the federal executive or judiciary, nor the dangers of distraction, nor the potential disruption of confidential communications justifies a qualified privilege for the full range of legislative activities normally protected by the Speech or Debate Clause.

Although we do not foreclose the possibility of a qualified privilege limited only to confidential deliberative communications, that issue is not squarely before us on the present record. The district court erred in concluding that the records at issue were insulated from production by a qualified privilege. Its order limiting the subpoena will therefore be reversed.

I. FACTS AND PROCEDURAL HISTORY

In early 1985, a select committee of the Commonwealth of Pennsylvania's House of Representatives (the "Committee") began an investigation into alleged improprieties, including payoffs, in the procurement of granite for an expansion of the state capitol in Harrisburg. The Committee reviewed numerous documents. It also interrogated witnesses in both open and closed session and through its investigators, in the process generating transcripts, summaries, notes and memoranda of its interviews.

In January, 1986, at the suggestion of the Pennsylvania Department of General Services, the United States Attorney for the Middle District of Pennsylvania convened a grand jury to investigate the same occurrences. Shortly thereafter, agents of the FBI met with Representative Nicholas Colafella, Chairman of the Committee, and with Committee counsel Reizdan Moore. These men advised the agents generally of the progress of the investigation but confined themselves essentially to matters of public record. Although Moore stated in an affidavit submitted to the district court that he had disclosed his impressions about potential sources of evidence and the Committee's intentions regarding certain witnesses, Colafella and Moore denied the agents access to documents, transcripts and notes not yet made public. Colafella and Moore also refused to reveal the names of many witnesses, the substance of what they said or whether they may have committed any federal crimes.

On January 15, 1986, following this interview, the U.S. Attorney caused a grand jury subpoena duces tecum to be directed to Representative Colafella or the records custodian of the Committee, demanding production of the following documents:

All records in your care, custody and control relating to an investigation of the purchase of granite use [sic] in the Capitol addition project as follows:

1. Memos, reports, summaries, interview notes, record review notes, correspondence and any other documents of an investigative nature complied, adopted, prepared or sent and received by any committee investigator including, but not limited to, the listed individuals and companies named on the attached list [omitted].

2. Agenda, minutes, summaries and all transcripts of public and private hearings, along with copies of all documents or exhibits referred to in said transcripts summaries, agenda or minutes during testimony or in comments by committee members or staff.

The subpoena also stated that in lieu of personal appearance, the documents could be mailed to the U.S. Attorney's office.

Colafella responded by moving to quash the subpoena, asserting that he need not produce the records because of a federal common law speech or debate privilege for state legislators under Federal Rule of Evidence 501. With the consent of the United States Attorney, several legislators were permitted to intervene in alignment with Colafella, including the Speaker of the Pennsylvania House of Representatives, the majority and minority leaders and the Bipartisan Committee for the Administration of the House. The district court held an immediate hearing, and the parties stipulated to many facts including the fact that no legislator was then a subject or target of the investigation.

Much of the hearing focused on the nature of the documents sought by the subpoena and whether they would reveal the thought processes of legislators or their aides. The U.S. Attorney repeatedly stated that he sought only "hard" evidence:

The Legislators informed the court that the Committee had already made many of the transcripts and documents public, but the U.S. Attorney rejoined: "It is my belief that there are additional documents and interviews which have not been made public which are vital and relevant. If it could be represented that there are not, I would withdraw my subpoena and abide the event."

The Legislators responded that the documents sought would in fact reveal the thought processes of committee members and their aides. The Legislators argued that the revelation of thought processes significantly impinged on legislative independence and the values of federalism. Moreover, the Legislators claimed that the subpoena did not further significant federal interests in law enforcement because: (1) most of the subpoenaed information was obtainable by the Grand Jury from other sources, and (2) the fact that no legislator was under investigation indicated that the Grand Jury sought to use the Committee merely as its investigative tool.

Following oral argument and full briefing, the district court agreed substantially with the Legislators. The court adopted a general balancing approach to the privilege question and essentially accepted the Legislators' evaluation of the competing interests. The court therefore quashed the subpoena in most particulars. The Legislators remained obligated only to disclose the identity of committee witnesses and to produce documents which the Committee had not itself authored if the Grand Jury could demonstrate that they were unobtainable through other means.

The district court entered its order on January 31, 1986. On February 6, the Committee released numerous documents to the public and sent copies of these documents directly to the U.S. Attorney. The U.S. Attorney did not believe that these documents included all those within the reach of the subpoena and therefore appealed to this court. When the Legislators filed their brief, however, they appended an affidavit by Committee Counsel Moore which stated that "all relevant or remotely relevant information regarding payoffs ...


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